Although Texas Rule of Civil Procedure 193.6, entitled, “Failing to Timely Respond – Effect on Trial,” seems simple on its face, recent trends in the application of the rule may take trial lawyers by surprise. At its core, Rule 193.6 seeks to promote fair trials and opportunities to assess settlement by ensuring that both parties inform each other regarding the nature and evidence of their claims and defenses. See Tex. R. Civ. P. 193.6. The penalty for failing to inform an opposing party, through proper disclosures and production of materials during discovery is that any issue or evidence not fully disclosed is automatically excluded from trial. See id. The principles behind the rule promote fairness and litigation outcomes based on the merits rather than surprise and gamesmanship.
Rule 193.6 is used more frequently than discovery sanctions, which trial courts may be hesitant to grant. Unlike a discovery sanction, in which the party seeking the exclusion of evidence must first file a motion to compel and prove the sanction is appropriate, exclusion of evidence under Rule 193.6 is automatic absent a showing of good cause, lack of unfair surprise, or lack of prejudice. See Fort Brown Villas III Condo. Ass’n v. Gillenwater, 285 S.W.3d 879, 881 (Tex. 2009). There is no requirement that an opposing party notify the proponent of evidence that it failed to sufficiently disclose or produce the evidence. In many cases this rule makes sense because the party pursuing a particular claim or proffering evidence is in the best position to know what is necessary to produce and disclose to support a fair trial.
Recently, however, following the legislative revisions to Rule 193.6, as well as revisions to Rule 194 governing initial disclosures, some trial courts and courts of appeals have interpreted the discovery and disclosure requirements in ways that surprise trial lawyers, potentially subverting the principles undergirding the rule. Rule 194.2, entitled “Initial Disclosures,” governs initial disclosures which must be made to the opposing side at the beginning of the lawsuit, within thirty days of a party’s answer or first general appearance in the case. These disclosures include but are not limited to the legal theories and factual bases of the responding party’s claims or defense, the amount and any method of calculating economic damages, and the name, address, and telephone number of persons having knowledge of relevant facts. See Tex. R. Civ. P. 194.2. Similarly, Rule 195.5 requires a party disclose information relating to any testifying expert, including the “subject matter on which the expert will testify,” and the “general substance of the expert’s mental impressions and opinions and a brief summary of the basis for them.” Tex. R. Civ. P. 195.5.
Parties often file initial disclosures early on in a case and then pursue discovery and continue litigating the case without revisiting the disclosures. But the discovery rules require a party to supplement discovery and disclosures throughout the course of litigation. Accordingly, as the parties’ understanding of the cases changes, their initial disclosures may not continue to accurately reflect their understanding of the case both in terms of the substance of the disclosure and the level of detail contained in the disclosure. The requirement that the disclosure and discovery stay current, along with the inherent question about how detailed a disclosure must be to comply with the rules have created two issues in Texas jurisprudence.
The first issue relates to how detailed a disclosure must be to sufficiently disclose a party’s legal theory, economic damages, or an expert’s opinion. For example, in McGhee v. Novoterra Chase, LLC, the party opposing attorney’s fees objected to trial counsel providing his opinion on the reasonableness of the attorney’s fees because the disclosure did not state the total amount of fees sought, and the billing records supporting fees described only the legal service rendered with the specific subject matter redacted. See McGhee v. Novoterra Chase, LLC, No. 09-22-00167-CV, 2024 WL 2758702, at *5 (Tex. App.—Beaumont May 30, 2024, pet. denied). The trial court ruled that counsel could not provide his opinion because the redactions made the disclosure inadequate as to counsel’s “mental impressions and opinions.” Id. at *6. Ultimately, the Ninth Court of Appeals held specifically that the redaction of privileged information in attorney’s fees invoices does not render an expert disclosure inadequate. See id. at *20.
Similar issues can occur relating to damages disclosures. In Evans Res., L.P. v. Diamondback E&P, LLC, the Eleventh Court of Appeals affirmed the exclusion of evidence of simple interest, holding that referencing a lease’s provision of ten percent per annum rate of interest was an insufficient disclosure of damages. See No. 11-24-00107-CV, 2025 WL 2980661, at *15 (Tex. App.— Eastland Oct. 23, 2025, no pet. h.). A common issue within damages disclosures, disclosures of expert opinions, and disclosures of legal theories is that in many of these cases, reasonable parties can disagree regarding the amount of detail and specificity needed to sufficiently comply with the disclosure requirement.
A second issue occurs when a party’s evidence or case changes throughout the course of litigation in response to discovery and litigation practice. Though disclosures must be made at the beginning of a case, sometimes as litigation progresses, a party’s answers to the initial disclosures may change. When this occurs, the party may find itself subject to an objection under Rule 193.6 that the party may not have anticipated. For example, in Diamond Hydraulics, Inc. v. GAC Equip., LLC, No. 03-23-00358- CV, 2024 WL 4629168 (Tex. App.—Austin Oct. 31, 2024, pet. granted) (mem. op.), a party sought to supplement an expert disclosure because the original expert no longer was available for trial. Similarly, in Buckhead Inv. Partners, Inc. et al. v. Brompton Community Housing Dev. Corp., No. 01-22-00389-CV, 2024 WL 5249163 (Tex. App.—Houston [1st Dist.] Dec. 31, 2024, pet. denied), an expert filed a supplemental report refining the expert’s calculations in response to rulings on summary judgment.
In both of these cases, the need to supplement the expert report or disclosure arose due to events that occurred during the normal course of litigation. And in both cases, the opposing side objected under Rule 193.6, and the trial court excluded any evidence based on the supplemental report. In Buckhead, the First Court of Appeals reversed the exclusion of the evidence, reasoning that the changes to the report were allowable refinements in the expert’s opinion while in Diamond Hydraulics, the party’s substituted expert was excluded. Compare Buckhead, 2024 WL 1 5249163 at *16–*17 with Diamond Hydraulics, 2024 WL 4629168 at *4–*5. **The Supreme Court of Texas has granted review in this case (No. 24-1049). Oral argument is scheduled for December 4, 2025, following the publication deadline for this article.**
In these instances, Rule 193.6 provides the opposing party with a strategic decision. The party may either (1) put the disclosing party on notice about the deficiency either through special exceptions, meeting and conferring, or a motion to compel, or (2) wait until pretrial or trial and object under Rule 193.6. The purposes of the rule can be turned on their head when an opposing party surprises trial counsel by objecting for the first time at pretrial or trial to witness testimony based on an insufficient initial disclosure, and the proponent of the evidence may find itself with limited ability to respond to the surprise objection.
Because rulings on Rule 193.6 objections can be outcome determinative, trial lawyers must be prepared to respond to the objection and create an appropriate record for review. See Chang v. Liu, No. 01-22-00529-CV, 2024 WL 4628401, at *4 (Tex. App.— Houston [1st Dist.] Oct. 31, 2024, no pet.) (mem. op.) (holding trial court did not abuse discretion in excluding evidence because record did not include evidence of good cause or unfair surprise).
Responding lawyers need to consider and be ready to present evidence addressing (1) whether the production or disclosure was sufficient to comply with the discovery rules, (2) whether there was good cause for any failure to comply, and (3) whether the failure to comply will cause unfair surprise. See Tex. R. Civ. P. 193.6. Responding lawyers must also put together a record that addresses the elements related to the 193.6 ruling. This record may need to include items that are not on the parties’ exhibit list, such as correspondence between the parties regarding discovery, the scope of production on various issues, or production on related issues that addresses whether the evidence or opinion is an unfair surprise in the context of the discovery and litigation practice in the case.
If responding lawyers are unable to put together this record together at the time the objection is raised, responding lawyers should consider moving for a continuance on the evidentiary ruling in order to have time to put together a record relating to the objection or move for reconsideration of the ruling and at that time put together the best possible record before the trial court to allow the trial court to rule differently and to allow for a more accurate appellate review of the issue.
The prepared lawyer will be in a better position to both avoid an objection under Rule 193.6 or to respond to an objection should one arise. Lawyers who are thinking about these potential objections will review their disclosures before pretrial conferences to ensure they are as accurate as possible and will arm their trial notebook with a game plan to respond to any surprise objections.
Appellate courts are dealing with these objections on a regular basis. (A Westlaw search of Rule 193.6 reveals 54 appellate cases in 2024 and 33 so far in 2025.) As the jurisprudence surrounding this rule continues to develop, trial lawyers who are prepared and focused on their disclosures and opposing counsel’s disclosures, both at the time of the disclosure, and as the case develops will be in the best position to ensure the disclosure complies with the rules and the parties reach a fair trial on the merits of their underlying dispute.